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Justice Court, New York,

RED HOOK ALCHEMY, LLC, Petitioner, v. Michael PATIERNO, et al., Respondents.

Case No. C-482-17

Decided: February 06, 2023

This matter is again before the Court on a motion by petitioner to reargue the Court's decision of October 13, 2022, wherein the Court found no binding legal authority to lift the automatic stay of eviction under the Emergency Rental Assistance Program (ERAP.) The Court had earlier ordered the eviction of the respondents by its decision of July 7, 2022.

Respondents cross-moved on December 14, 2022, in opposition to the relief sought by the petitioner and in support of their motion for summary judgement in their favor, which would vacate the eviction and rule that respondent Patierno was a business partner of petitioner rather than a tenant.

Oral argument was heard on January 4, 2023.

A flurry of subsequent submissions were received from both sides, the final of which was dated January 17, 2023, upon which date the motion was marked by the Court as being fully submitted.

Petitioner was represented by Paul Freeman, Esq., and Scott Owen, Esq., of Freeman Howard, P.C., Hudson, New York. Respondents were represented by Oliver Budde, Esq., Harrison, New York.

Court's Analysis

The Court will address the respondents’ contentions first, since, if the Court finds that respondent Patierno was a business partner and not a tenant, the eviction would be vacated and the entire ERAP issue would become moot.

In its decision of July 7, 2022, the Court ruled that any imagined business relationship between these parties was voided by the Statute of Frauds, § 5-703 of the General Obligations Law (GOL), in that the respondents’ purported interest in the real estate was not memorialized in a writing.

In their cross-motion, respondents offer the unique position that the Statute of Frauds should not apply to this matter as the justice courts have “no jurisdiction to decide questions of contract formation and interpretation such as those involved here ․ [w]hile in this case the Court is fortunate to have a greatly experienced attorney presiding as judge, he need not have been, and if he had not been an attorney, the impropriety of even considering that a court such as this could address the complex situation that exists between the parties here would be made clear.” (sic)

In the first instance, counsel should not sell short my non-lawyer colleagues, many of whom have made a lifelong study of law and are quite sophisticated in their understanding of legal principles, such as those at play here. Secondly, nowhere in § 5-703 GOL does it say that the Statute of Frauds does not apply to the justice courts. Finally, respondents argue that there was a writing here in the unsigned four-part “agreement” offered into evidence by respondents. Respondents aver that such an unsigned agreement can be binding and cites in support 223 Sam, LLC. v. 223 15th St., LLC., 161 AD3d 716 (2d Dept., 2018). However, the subject matter of 223 Sam was breach of a personal services contract to manage the building, where, in the instant matter, respondent Patierno seeks an monetary interest in the real property, which would - under the Statute of Frauds - require a writing signed by both parties.

Respondents also refer to the use of the four-part “agreement” in litigation between the same parties in other jurisdictions. These other suits involve matters dehors the record, and are not properly before this Court. The Court can only base its decision on the record developed at trial.

For all of the reasons cited above, the Court denies the respondents’ cross-motion and will not vacate the order of eviction.

As to petitioner's motion to reargue the Court's refusal to lift the statutory and automatic ERAP stay of the underlying eviction, the Court premised its decision of October 13, 2022, on the clear statutory mandate and the lack of any controlling authority that would require that this Court deviate from the will of the legislature that the eviction herein be stayed while respondents’ ERAP petition for rental assistance is pending.

In the motion to reargue, petitioner brings to the Court's attention, as what they propose is binding authority, the United States Supreme Court case of Chrysafis v. Marks, 141 S. Ct. 2482 (2021).1 In Chrysafis, the Supreme Court enjoined the enforcement of Part A of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the residential eviction moratorium) because it precluded a landlord from contesting a tenant's self-certification of financial hardship. The Court held that Part A violated the “longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.” Id. (quoting In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955)). The Court's order did not enjoin the enforcement of the Tenant Safe Harbor Act (“TSHA”), which “instructs New York courts to entertain a COVID-related hardship defense in eviction proceedings.” Id. (citing 2020 NY Laws ch. 127, § 2(2)(b)). The New York Legislature then enacted chapter 417 of the laws of 2021 to restore the moratorium and addressed the due process concerns raised in Chrysafis.

This Court's reading of the current ERAP statute finds that the stay pending an ERAP application is binding on this Court with the only exception being the “nuisance” language in section 9-a of the act:

ERAP Statute:

§ 8. Restrictions on eviction. [Expires September 30, 2025]

Except as provided in section nine-a of this act, eviction proceedings for a holdover 2 or expired lease, or non-payment of rent or utilities that would be eligible for coverage under this program shall not be commenced against a household who has applied for this program or any local program administering federal emergency rental assistance program funds unless or until a determination of ineligibility is made. Except as provided in section nine-a of this act, in any pending eviction proceeding, whether filed prior to, on, or after the effective date of this act, against a household who has applied or subsequently applies for benefits under this program or any local program administering federal emergency rental assistance program funds to cover all or part of the arrears claimed by the petitioner, all proceedings shall be stayed pending a determination of eligibility.(Emphasis added by the Court.)

§ 9-a. Expired lease or holdover tenant. [Expires September 30, 2025]

Section eight of this act shall not apply, and a landlord or property owner that has agreed not to evict a household for reason of expired lease or holdover tenancy pursuant to paragraph (d) of subdivision two of section nine of this act may evict such household, if a tenant intentionally causes significant damage 3 to the property or is persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others,

Other than Chrysafis, petitioner continues to rely on trial court decisions which are not binding upon this Court. In addition, petitioner claims that the ERAP stay should be lifted due to respondents’ alleged and unproven forgery of a rental agreement submitted as part of his ERAP application. Such an allegation should be brought to the attention of law enforcement authorities and the ERAP agency. This Court does not have jurisdiction to rule on the bona fides of such an allegation of fraud unless and until criminal charges are brought before it.

For all of the reasons cited above, the Court denies the petitioner's motion and will not lift the ERAP stay of eviction.

Motion and cross-motion are denied, in toto.



1.   The Court expresses its deep appreciation to Robert Logan, Esq., of the New York State Office of Court Administration's Office of Justice Court Support for his assistance in formulating the summary of the applicability of the Chrysafis decision.

2.   Respondents are holdovers.

3.   There is no such allegation that Mr. Patierno “intentionally cause[d] significant damage to the property” in the instant proceedings. (Emphasis added by the Court.)

Jonah Triebwasser, J.

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